Neizvršenje ugovora, odgovornost i naknada štete

Jovičić, Katarina and Vukadinović, Slobodan (2023) Neizvršenje ugovora, odgovornost i naknada štete. Monografija (197). Institut za uporedno pravo, Beograd. ISBN 978-86-82582-09-0

Text 2023 - Monografija_197--WEB.pdf - Published Version Available under License Creative Commons Attribution Non-commercial No Derivatives. Download (2MB)

Abstract

Prior determination of the sources governing contractual interactions was essential for the research on various conceptualizations of contract non-performance, contractual liability, and compensation of damages. Given that contract is the primary source of rules governing contractual relations, principles of autonomy of will and contractual freedom were studied, as well as their limitations. In addition to examining national and international sources that can govern mutual rights and obligations in accordance with modern methods of concluding contracts, emphasis was placed on contract forms and templates, adhesion contracts, standardized agreements and their general terms and conditions of contracts (in business, travel, insurance, etc.). The role of a custom and customary law in contract law is emphasized, as well as the importance of understanding the evolution of principles in European and comparative contract law, doctrine and judicial and arbitral practices. Before delving into and discussing many types of contract non-performance, it was critical to grasp the contractual obligations which can trigger certain legal consequences and the option of applying specific legal remedies. Legal effects as well as the principle of the contract’s binding force were examined in order to provide theoretical and historical explanations to the question of why contracts are binding. The analysis of the legal nature of contractual obligations commences with Roman law, which is then followed by an exploration of the theories of promise, reliance and transfer. The final component of this section delves into the prevalent idea and justification for the binding effect of contracts, which is represented succinctly as pacta sunt servanda. The investigation into contract non-performance commences by conducting a comparative analysis of various approaches to defining the notion of contract non-performance. This encompasses an examination of the concept based on legally prescribed forms of non-performance, as well as the comprehensive concept of contract non-performance. The latter is subjected to further scrutiny through a thorough evaluation of the two systems: one that links the concept of contract non-performance to contractual liability, and another that determines contract non-performance by emphasizing legal remedies and the prerequisites for their implementation. Particular emphasis is placed on contract non-performance within the framework of Serbian positive law This section emphasizes the practical importance of defining various types of contract non-performance. It then proceeds to specifically examine the delay in the performance of a contractual obligation, the impossibility of performance and the liability for material and legal flaws in performing a contractual obligation. The focus of the investigation of contractual liability is exploring the grounds of contractual liability in comparative law, with distinct consideration of the two systems: subjective and objective contractual liability. For the sake of reader comprehension, the study of subjective liability is offered in both Germanic and Roman systems. Such investigation comes before delving into the basis of contractual obligation under Serbian law. The exploration of contractual liability limitations and exclusions follows as well as limitations of such possibilities. The analysis continues by exploring contractual and statutory justifications for excluding and restricting contractual obligations. Subsequently, an evaluation is conducted to ascertain legal significance of exculpatory provisions. This segment delves into the present state and advancements in the utilization of these clauses by business practitioners engaged in commercial and international trade activities. Specifically, it concentrates on the regulations and repercussions that apply to such provisions in consumer contract law, particularly when they are formulated in a manner that renders them unjust contractual terms. The examination of contractual damages is organized into four distinct sections. It begins by examining the purpose of damages, with a particular emphasis on three aspects: compensating the creditor for losses incurred as a result of the failure to achieve expected benefits from contract performance, compensating the creditor for losses incurred due to reliance on a validly executed contract and the belief that it would be fulfilled as agreed, and providing restitution to the creditor by requiring the party in breach of the contract to return what they received as performance under the contract. Furthermore, it addresses the protection of the creditor’s interest in demanding specific performance of the contract and the preventive role of damages. Alongside the legal treatment of the concept of damages and the requirements for asserting the right to damages, significant attention is devoted to conducting thorough research on quantifying damages and establishing proofs of contractual damages. This includes references to legal sources, theoretical and comparative studies, and relevant case law. In a claim for damages, the creditor seeks compensation from the debtor for losses incurred as a result of non-performance or improper execution of a contract. The primary objective of this legal recourse is to restore creditor’s financial position to a state as if the debtor had fulfilled the contract properly. Typically, the creditor can achieve this by receiving a suitable monetary sum, but he/she must provide evidence of both the occurrence and extent of the damage. However, there may be instances where the creditor is unable to precisely prove the exact amount of the incurred damage, or it may be excessively challenging or costly to do so. In such cases, the creditor may only claim the costs incurred, relying on the expectation that the contract will eventually be fulfilled. The creditor has the right to determine how to formulate the claim for damages. Nevertheless, as a rule, they cannot simultaneously accumulate multiple claims to obtain a larger compensation because damages are not punitive. They do not serve as a penalty imposed on the debtor for breaching the contract; rather, they are intended to be equivalent to the actual harm and lost profits suffered. In situations where compensating for damages solely through the payment of a corresponding sum of money may not adequately remedy the deficiencies in contract execution, the creditor may seek compensation through the specific performance of the contract in kind. Two fundamental inquiries arise when discussing compensation for damages: which types of damages are eligible for compensation, and how should the value of these damages be quantified in monetary terms? In the realm of comparative law, it is widely accepted that contractual damages are pecuniary, encompassing both actual harm and lost profits. However, there remains a lack of consensus regarding the entitlement of the injured party to receive compensation for non-pecuniary contractual damages, although arguments in favour of such compensation are gaining traction. Determining the amount of compensation necessitates the utilization of an appropriate calculation method to assess the damages. In principle, damages can be evaluated by considering the specific costs incurred by the injured party as a result of the breach of contract, which is referred to as a specific calculation of damages. However, due to the arduous task of proving damages for the injured party, comparative law has established two distinct so-called privileged methods for calculating the amount of compensation. These methods are applicable only when the creditor has terminated the contract breached by the debtor, who bears responsibility for the breach. The first method involves compensating the injured party based on the difference in market prices between the value of the contractual performance at the time the contract was concluded and its value at the time of non-performance. The second method entails compensating the injured party based on the difference between the agreed price of the terminated contract and the price from a cover contract, provided that this difference is detrimental to the injured party. It is important to note that compensation awarded through these methods represents the minimum amount for damages claim, and the creditor retains the right to pursue additional damages under the general rules for compensation until achieving full restitution. The law of damages is governed by the principle of full compensation although comparative analysis reveals that all legal systems deviate from the principle of integral compensation. Different techniques are employed to implement these limitations, with the most common approach being to consider only the damages that the debtor could have foreseen as a possible consequence of the contract breach at the time the contract was concluded. Furthermore, the extent to which the creditor contributed to the occurrence or increase of the damages through their behaviour is often taken into account. Limiting damages to the foreseeable amount is necessary to ensure that the liability of the contractual debtor aligns with the objective and fair measure. This is because the causal link between the contract breach and damages, which is a necessary condition for the right to compensation for both contractual and non-contractual damages, can be relatively easily established in contractual damages. However, the challenge lies in assessing the amount of contractual damages, as not all damages that occur after the contract breach are always part of the ordinary course of events. They are often influenced by specific circumstances of the individual creditor and the case. Therefore, contractual damages are generally less than the loss for which the debtor is responsible, applying the theory of adequate causation prevalent in many continental legal systems or based on the division of damages into direct and indirect damages in common law systems. The solution to this problem is provided by the foreseeability rule, which ultimately determines the point at which the chain of causes and effects initiated by the contract breach stops. The monograph thoroughly analyses the relationship between causation and foreseeability as two criteria that limit the contractual liability of the debtor, intertwining and defining the final amount of damages. The calculation of contractual damages is also influenced by the behaviour of the creditor, such as whether they contributed to the damages or failed to take reasonable measures to prevent or minimize the damages. Hence, actions of the creditor also intersect with causation by disrupting the sequence of events between the breach of contract and the resulting damages in cases where the creditor played a role in causing the damages or neglected to take appropriate steps to prevent or reduce them. The monograph explicitly differentiates how each of these scenarios impacts the assessment of damages.

Actions (login required)

View Item